Use of confidential documents in divorce

Contrary to popular belief, husbands and wives are entitled to privacy against each other. You must take these duties seriously, as there could be both civil and criminal sanctions for you if you obtain or use confidential documents during your financial proceedings which belong to your spouse.

What count as confidential documents?

These can be divided into three categories:

1. Documents given from your spouse to you during the relationship.

2. Documents accessible to you given the nature of the relationship.

3. Documents personal to your spouse that are not openly accessible to you.

It is possible to argue that confidentiality has been waived for documents in category (1), due to the fact that the document has been given to you, and category (2), depending on the circumstances in which they were obtained (please see below). It will be harder to argue that documents in category (3) are not confidential.

How do you decide whether documents are confidential?

1. The document doesn’t need to be locked away with a key or equivalent to be confidential; electronic data can also be confidential.

2. If your spouse leaves a bank statement lying around the matrimonial home, it may well lose its confidential character.

3. Even if you have physically unrestricted access to your spouse’s personal documents (e.g. emails), he/she still has a reasonable expectation of privacy. Therefore you should not inspect or copy these documents.

4. If your spouse keeps personal documents in a study or drawer, these are more likely to retain their confidential nature.

5. If the document is personal in nature (e.g. a personal diary) then it will be confidential even if it might be left out and visible to you.

In summary, the nature of your relationship, and the way you lived and conducted your personal and business affairs, will be essential in determining whether certain documents are confidential.

What if you think confidentiality has been waived by any of the above factors?

1. Speak to your solicitor and explain the circumstances under which you obtained the document so that he/she can advise you as to whether or not confidentiality has been waived.

2. If your solicitor is satisfied that confidentiality has been waived, give the original document(s) to him/her. Your solicitor will retain copies, and send the originals to your spouse’s solicitor, saying that he/she has looked at the documents and concluded that confidentiality has been waived.

3. The onus will then be on your spouse to dispute the waiver of confidentiality and bring an application to court. There is a risk that if an application is made and is successful, your solicitor might have to come off the court record and stop acting because he/she has seen the relevant documentation.

What if you are not sure if the document is confidential?

1. Do not read the document(s).

2. Speak to your solicitor and explain the circumstances under which you obtained the document, as confidentiality may have been waived (depending on the facts).

3. If it is not clear whether confidentiality has been waived or not, your solicitor can ask the court. If confidentiality has not been waived, your solicitor will either immediately return the documents to your spouse’s solicitor in a sealed envelope, or make an application to the court to use the documents. Your solicitor will not read the documents without the court’s or the other side’s permission.

4. Your spouse’s solicitor will then read the documents and disclose what is both admissible and relevant to your claim. Remember your spouse has a duty of full and frank financial disclosure once you have exchanged your Form E, but not before this time.

What if you know the confidential documents contain relevant information but your spouse still does not disclose them?

1. You are able to rely on your knowledge of the documents to challenge your spouse’s disclosure in the proceedings. Your knowledge is admissible evidence.

2. However, if your knowledge is about matters that are privileged (e.g. legal advice given to your spouse by his/her solicitor, or that relates to the proceedings), you must not discuss this with your solicitor.

3. If your recollection is that the documents clearly show your spouse is unjustifiably dealing with his/her assets, and there is a clear risk of dissipation to her prejudice, then you must tell your solicitor, who might be able to make an application to freeze those assets. However, you will be bound to reveal in your witness statement that you obtained the information illegitimately, which could lead to civil or criminal proceedings made against you by your spouse.